You expressed concern that that patent policy should include both
a RAND and an RF licensing option. We appreciate your concern and
understand that RAND licensing has been common on standards
organizations in technology sectors other than the World Wide Web.
The Patent Policy WG, having considered this question in depth over
the last several years, has concluded that the RF licensing
requirement in the policy is the appropriate choice for the Web
community as a whole. We believe that RF licensing has been
important to the success of the Web to date and expect that to be
the case in the future. This decision in support of the RF policy
was made by a consensus of the Patent Policy Working Group. In
order to account for unusual situations in which essential claims
are not available on RF terms, we have included the ability for a
Patent Advisory Group to recommend the inclusion of non-RF
technologies in Recommendations. This exception provision will be
included in the policy draft circulated shortly for AC Review. We
do not plan any changes to the policy. If you do not agree with this
approach, please contact us again no later than 18 March 2003. I
would also point out that you will have the opportunity to raise
this concern again directly when the patent policy is circulated to
the Advisory Committee for AC Review and Director's Decision.

A number of commenters have raised questions about whether there is
a conflict between the GPL and the royalty-free licensing
requirements set in the W3C RF Patent Policy. In particular,
commenters expressed concern that the W3C Patent Policy contains a
'field of use' restriction that would bar GPL implementations. The
most immediate response to this concern is to note that there are no
field-of-use restrictions whatsoever required by the policy. Hence,
the fact that a Recommendation issues under the policy does not
impose any field-of-use restrictions on an implementer. The Patent
Policy WG has discussed this matter and reached the following
conclusion: The policy addresses the patent licensing requirements
for implementations of W3C Recommendations, while remaining neutral
as to what patent owners may do as to licensing for other
purposes.The policy neither creates a presumption that any WG member
will offer any license to its patents for any other use, nor that
the Member will impose any conditions on implementers to limit their
implementations to the Rec.

You expressed concern that that patent policy provisions must be
included in the W3C Membership agreement in order to be legally
binding. We believe this is not necessary for the following reasons:
First, each time a W3C Member joins a working group, the AC
Representative from the Member organization will have to complete a
call for participation. That call will include explicit reference to
the Patent Policy and require that the AC representative manifest
assent to it with respect to his/her organizations participation in
the Working Group. Second, the Member agreement contemplates that
existence of additional documents which detail the rules for
participating in W3C activities. The main operative document is the
Process Document. We expect that when the patent policy is
finalized, the Process Document will link to it as a normative
reference governing W3C activities. As we believe that these two
measures address your concern, we do not plan any changes to the
policy. If you do not agree with this approach, please contact us
again no later than 3 February 2003.

You suggested that the RF licensing commitment should be binding
on all W3C Members, not just the participants in the WG responsible
for the Recommendation. Your main argument appears to be that a
Membership-wide commitment will provide greater licensing certainty
for implementers and minimize encumbrances on W3C Recommendations.
The PPWG discussed this issue extensively over the last year. Our
discussions also supported the notion that a Membership-wide
commitment would lead to greater certainty for implementers. However,
we felt that imposing such a requirement on all W3C Members would
raise the cost of Consortium membership unacceptable high without
realizing comparable benefits. Comments from the PPWG and other
Members have suggested that many Members participate intensively in a
select number of WGs, but pay no attention to other activities. If we
applied a Membership-wide RF licensing requirement, then Members
would have to track the developments in every WG in order to
ascertain whether or not they have patent rights to consider
excluding. We chose the current policy balance in order to encourage
Members to continue their affiliation with W3C even if they do not
participate in all Activities of the Consortium. In addition to our
concern about the burden on Members, we believe that limiting the
licensing requirement to those who participate in developing a
particular specification is likely to obtain RF rights from those who
are most likely to have Essential Claims, the participants
themselves. We also expect that the ability to attach reciprocity
conditions on RF licenses issues under this policy (sec 3(4)) will
help extend the RF licensing terms beyond just WG participants to all
who implement a given Recommendation. Having discussed your concern,
the PPWG believe that we struck the correct balance between licensing
certainty and minimizing burdens on W3C Members who do not
participate in either the development or implementation of a given
technology. We plan to leave this portion of the policy as it is in
the current draft.

You pointed out that the working of 5.3(3), one of the options
that the PAG might adopt, could be read to mean that the PAG might
adopt or suggest licensing terms in violation of the W3C RF licensing
requirements spelled out in the policy. This is not what we intended
and thank you for pointing it out. We will make an editorial
clarification to 5.3(3) to indicate that the Team & PAG would be
seeking licensing terms that are consistent with the W3C RF
requirements of the Patent Policy, not some other terms. We
appreciate your comments on the draft and will respond to the other
issues you have raised in the coming weeks. If you are not satisfied
with this response, please write back by 14 January 2003.

We believe that the license grant itself required in section 3 is
broad enough to encompass most distributions. Under the policy, the
license must grant at least the following rights: "to make, have
made, use, sell, have sold, offer to sell, import, and distribute and
dispose of implementations." (Section 3) In that we specifically
mention 'distribution' and given the doctrine of exhaustion, we feel
that the license grant is broad enough to include most distribution
models. If there are specific models of distribution that you believe
we have failed to account for, please let us know.

You expressed concern that the license requirements are not precise
enough in defining 'customary terms' and suggest that we provide an
exhaustive list of those terms that are allowed under this
requirement. We do not believe that it is practical to list all
possible customary terms but are confident that the other limitations
in section 3 provide sufficient protection against a term being
offered as 'customary' that actually has a negative impact on
implementation. In particular, section 3(7) prohibits any other terms
that might impede the behavior of the licensee. Therefore, we do not
plan to change the draft.

You expressed concern that the time period over which participants
have a commitment to provide RF licenses was unclear between section
2.1 and 3(9). Our intent was to indicate that the participant has
the obligation to offer a license for the life of the patent unless
the Recommendation in question is rescinded. Hence, the next draft
will clarify the distinction between the length of the obligation to
provide licenses (2.1) and the duration of license required (3.9).
If you do not agree with this approach, please contact us again no
later than 18 March 2003.

Thanks again (again) for your Last Call comments on the draft RF
Patent Policy. We have noted one of your comments are Issue L10[1]
on the Last Call issues list and have this response: You expressed
a question about the meaning of the term 'interim license.' On
reflect, we have concluded that an interim license is not necessary
so we have removed the provision altogether. If you do not agree
with this approach, please contact us again no later than 18 March
2003.

You expressed concern that the disclosure obligation should be
binding on all W3C members, not just those who receive the
disclosure request. The PPWG has decided not to adopt this
suggestion as we believe it places to great a burden on W3C members
who are not participating in a given WG and is not likely to produce
sufficient benefit in return. We have provided, however, that the
disclosure request be placed at the front of each specification
draft, so that we believe the disclosure request will reach those
who are likely to have relevant knowledge. We have chosen to target
disclosure obligations to those who actually examine specifications
in question, rather than requiring all W3C members to conduct patent
searches for all specifications under development at any moment. We
believe that concentrating the disclosure obligation on those who
are in the relevant WG and those who actually look at the
specification will yield the bulk of relevant disclosures. We
concluded that if we expanded the disclosure obligation more broadly
that we might discourage Membership in W3C without gaining
significant additional disclosure information. If you do not agree
with this approach, please contact us again no later than 18 March
2003.

You proposed that the disclosure obligation for unpublished,
pending patent applications should include all applications, not
just those developed based on material from the relevant
specification. We have noted considerable difference of opinion on
this matter. Other Members have proposed eliminating the obligation
altogether. Hence, we have elected to leave the provision as it
stands. We believe that requiring disclosure where applications are
actually being developed based on W3C material will yield disclosure
of the most relevant claims. We note also that if that patents issue
then the participant will have an obligation to license essential
claims on an RF basis. If you do not agree with this approach,
please contact us again no later than 18 March 2003.

You suggested that the policy not require disclosure of
unpublished applications. As we noted in our response to another
Member[3], this is an issue an which Members disagree. We feel that
the compromise position in the policy adequately respects the
proprietary interests of Members by allowing Members to avoid
disclosing the actual text of the unpublished application. The
policy as proposed only requires disclosure of the existence of the
application. We do not plan any changes to the policy. If you do not
agree with this approach, please contact us again no later than 18
March 2003. I would also point out that you will have the
opportunity to raise this concern again directly when the patent
policy is circulated to the Advisory Committee for AC Review and
Director's Decision.

You expressed concern about the suitability of the Requirements
Document as a trigger point for exclusion of patents. The PPWG agrees
with your assessment that such documents may not adequately identify
a unique set of Essential Claims. Hence, in the draft that we plan
to circulate for AC Review, we will replace the ReqDoc with what we
have identified as the Second Public Working Draft. We believe that
this will lead to a more stable, predictable exclusion process. In
addition to removing reliance on requirements documents, we have
called for a 'Call for Exclusion' to be issued by WG chairs and
staff contacts in order to alert AC Reps of upcoming exclusion
deadlines with pointers to relevant documents. If you do not agree
with this approach, please contact us again no later than 18 March
2003.

You suggested that the obligation to disclose unpublished
applications should be satisfied if the participant leaves the WG.
This suggestion is part of your larger concern that such disclosures
would result in leakage of trade secrets. We believe that we have
addressed that issue overall by provide two disclosure paths. A
discloser may either disclose the actual text of the application or
merely identify the portion of the specification to which the
application is related. In discussing this issue again, the PPWG
has concluded that the scope of this particular part of the
disclosure obligation is an appropriate balance between the needs of
the Membership as a whole for openness and the proprietary interests
of individual members. The disclosure obligation for unpublished
applications is already quite narrow, in that it only applies in
cases where the application actually uses information from a
specification to develop an application. The concern you stated that
AC Reps might not be aware of exchanges between inventors and patent
attorney's suggests that in many cases there would be no disclosure
obligation at all as the AC would not be aware of the application.
It is only the case where someone in the Member organization uses
material from W3C WGs to craft applications on work actually going
on in the standards-setting context that we are concerned about. We
believe that it is reasonable to require disclosure there. If you
do not agree with this approach, please contact us again no later
than 18 March 2003. I'd also point out that you'll have the chance
to raise this issue again if you see fit during the AC Review of the
entire policy.

As part of your concern about the requirement to disclose the
existence of pending, unpublished applications, you suggested that
this disclosure ought to be limited to WG participants only. We
have addressed your general concern about this requirement
elsewhere.[2] On this aspect of the question, we do not believe
that it would serve the fundamental need for patent disclosure
identified by the PPWG to impose the limit you suggest. In
particular, we do not want to encourage Members to sit outside a
WG, watch the development of specifications, and file
applications/amendments based on that information. While we believe
that the vast majority of W3C Members would not engage in such a
strategy, we believe it is important to be very clear that in the
event that a Member were to take advantage of the W3C process in such
a way, that disclosure is required. If you do not agree with this
approach, please contact us again no later than 18 March 2003.

You indicated your opposition about the loss of licensing
flexibility with position take in the 14 Nov 2002 Last Call draft
to remove any RAND exception. The PPWG has decided to recommend to
the AC that a narrow exception process be included in order to
account for those situations in which the Membership and Director
believe that there is a compelling reason to include technologies
which do not meet the RF licensing requirements in the policy. The
exception process is included in the 5 March 2003 WD[2] and will be
circulated in essentially that form for AC Review.

You requested that the deadline for exclusion of Essential Claims
be changed from 60 to 90 days after the publication of the relevant
document. In shifting from the Requirements document to an
identified public working draft (likely, the second public working
draft) we believe we have brought greater certainty to the
exclusion process.[2] We are concerned that delaying the exclusion
deadline by 3 months from the time that the WG actually publishes
the relevant draft will add too much uncertainty to the process.
The PPWG participants, many of whom will be responsible for
responding to such exclusion requests, believe that the 60 day
deadline is reasonable. Hence, we do not plan to include the
extension you request.

You suggested that the disclosure obligation ought to be limited
to only the participants in a WG. This suggestion was motivated by
a concern about administrative burden. In the latest draft of the
policy we have included provisions to ease the administrative
burden of the requirement. In particular, the policy now requires
that " Disclosure requests other than those that appear in the
specification itself should be directed to the AC Rep."[2] Given
that all W3C Members have access to all WG Working Drafts, whether
or not they are a participant in the group, we believe that the
broader disclosure obligation remains important. We would not,
however, that the disclosure obligation is only triggered when
someone has actual knowledge of a likely essential claim. We do
hope that the clarifications we have made based on your suggestion
help to address your concern.

This list includes a summary of all issues raised, both by the public and
W3C Members. Some of the W3C Member comments are confidential to the W3C
Membership, therefore the links to some comments will not be accessible by
those who are not W3C Members. Also, links to meeting minutes that record
decisions are Member-confidential, but the substance of those agreements and
that communication back to the commenters are repeated in full in the
'Response to Commenter' column.